The Plaintiff Neutrality Principle: Pleading Complex Litigation in the Era of Twombly and Iqbal
75 Pages Posted: 12 Dec 2009 Last revised: 16 Mar 2010
Date Written: March 15, 2010
Two recent Supreme Court cases have stirred the world of pleading civil litigation. Bell Atlantic v. Twombly introduced the concept “plausibility pleading” in which the plaintiff is required to plead facts sufficient to suggest that the claim for relief is “plausible,” and Ashcroft v. Iqbal affirmed that the plausibility standard applies to all aspects of a complaint subject to Rule 8(a) of the Federal Rules of Civil Procedure. This Article examines the consequences of the plausibility standard for pleadings in complex litigation cases.
Twombly and Iqbal have opened the door to the use of cost/benefit analysis in pleading. Given this possibility, the Article argues that it is unacceptable to automatically equate the existence of a class action with a high cost of litigation because this fails to differentiate among types of class actions, and to differentiate class actions from other potentially costly types of litigation, and because it fails to account for the efficiencies and judicial economy that some class actions are, themselves, supposed to create.
The Article then addresses the application of the Twombly/Iqbal standard to allegations of plaintiff conduct. Complex litigation pleadings, like pleadings in ordinary lawsuits, contain allegations of conduct and condition that plaintiffs make about themselves as well as those made about defendants or third parties. A more robust understanding of the plausibility standard emerges through this division of allegations about plaintiffs and allegations about defendants. Allegations of plaintiff conduct in a complex litigation complaint sometimes contain speculation about the conduct or condition of other plaintiffs as well as the conduct of defendants. This peculiarity of complex litigation pleading creates an additional arena of allegations from which one might attack the factual sufficiency of a complaint.
The Article introduces a key component of pleading, the plaintiff neutrality principle, which states that when a plaintiff makes neutral allegation concerning her own condition or conduct, that is, subject to inferences of both lawful and unlawful conduct on the part of the defendant, it is not speculative and therefore entitled to a presumption of truth for the purposes of deciding a Rule 12(b)(6) motion to dismiss. In the complex litigation context, the group plaintiff neutrality principle addresses how inferences drawn from “neutral” behavior should apply to allegations of class members’ conduct.
The Article concludes by analyzing situations in which the baseline for plaintiff conduct differs because of publicly available data about the condition of a group of plaintiffs, particularly those that are consolidated through multidistrict litigation, rather than as class actions. It concludes that application of the Twombly/Iqbal principle to this context may not be as harmful as application to allegations about defendant conduct because of the plaintiff’s ability to access the relevant information and, if necessary, replead the case.
Keywords: 12(b)(6), Rule 8, Twombly, Bell Atlantic, Iqbal, Ashcroft, motion to dismiss, pleading, notice, conclusory, plausible, plausibility, class actions, multidistrict litigation, complex litigation
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